Gujarat High Court
Somabhai Manabhai Bharwad Thro ... vs State Of Gujarat on 26 October, 2020
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/3717/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3717 of 2020
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SOMABHAI MANABHAI BHARWAD THRO ALPESHBHAI HIRABHAI
BHARWAD
Versus
STATE OF GUJARAT
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Appearance:
MS GAYATRIBA B JADEJA(5152) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 26/10/2020
ORAL ORDER
1. By way of this application, the applicant-convict has prayed to quash and set aside the order dated 12.06.2020 passed by the respondent No.3-authority and to release him on furlough leave for a suitable period.
2. Ms. Gayatri Jadeja, learned advocate for the applicant, submitted that the impugned order passed by the respondent- authority is contrary to the provisions of the Bombay Parole and Furlough Rules, 1959. It was submitted that furlough leave is a right of the prisoner and that every prisoner is entitled to enjoy said leave. Furlough leave is treated as a remission of sentence and is considered to be a part of the prison term. It was contended that the respondent-authority rejected the application for furlough leave solely on the negative report given by the police, which is erroneous. It was pointed out that the applicant Page 1 of 4 Downloaded on : Tue Oct 27 00:42:13 IST 2020 R/SCR.A/3717/2020 ORDER was released on parole leave for a period of fourteen days vide order dated 16.09.2020 passed in Special Criminal Application No.4381 of 2020 and that during such period, no untoward incident was reported against the applicant. Hence, the apprehension raised by the police is baseless. Further, no complaint of any breach of peace and / or disturbing the law and order situation has been filed against the applicant. It was, accordingly, urged that discretion may be exercised in favour of the applicant.
3.1 In support of her submissions, learned advocate for the applicant placed reliance upon the decision of this Court in the case of Vasram Gagji v. State of Gujarat, (1993) 1 GLR 404 and more particularly, on the observations made in paragraph-13 therein, which reads thus;
"13. The parole and furlough Rules are part of the penal and prison reform with a view to humanise the prison system. These Rules enable the prisoner to obtain his release and to return to the outside world for a short prescribed period. The objects of such a release of prisoner can be read from para 101 of the report submitted by the All India Jail Manual Committee as also the objects mentioned in the model Prison Manual. These objects :
(i) To enable the inmate to maintain continuity with his family life and deal with family matters;
(ii) To save the inmate from the evil effects of continuous prison life;
(iii) To enable the inmate to maintain constructive hope and active interest in life."
4. Mr. Pranav Trivedi, learned Additional Public Prosecutor, submitted that though furlough leave is a right of the prisoner Page 2 of 4 Downloaded on : Tue Oct 27 00:42:13 IST 2020 R/SCR.A/3717/2020 ORDER but, the same is not an absolute right as it is subject to the report of the police. It was submitted that as per the police report, there was apprehension of breach of peace and disturbance of the law and order situation at the hands of the applicant and therefore, the furlough leave application came to be rejected. It was, accordingly, urged that no discretion may be exercised in favour of the applicant.
5. Heard learned advocates on both the side and perused the material on record. It appears that the furlough leave application of the applicant came to be rejected on the ground that the law and order situation would be disturbed, if the applicant is released from jail. It is duty of the authority concerned to ensure that law and order situation in any area is not disturbed. Merely on a presumption that such disturbance may occur, a prisoner cannot be denied his right as it is contrary to the object of the Rules in question. In the absence of any material on record to substantiate the say that the law and order situation would be disturbed by the applicant if he is released on leave, this Court is inclined to exercise discretion in favour of the applicant.
6. In the result, the application is allowed and the impugned order dated 12.06.2020 is quashed and set aside. The applicant is ordered to be released on furlough leave for a period of Fourteen Days from the date of his actual release upon his furnishing a personal bond of Rs.5000/- (Rupees five thousand only) with a surety of the like amount to the satisfaction of the jail authority and on condition that the applicant shall not disturb the law and order situation in any manner during the period of furlough leave. The application is allowed in the Page 3 of 4 Downloaded on : Tue Oct 27 00:42:13 IST 2020 R/SCR.A/3717/2020 ORDER aforesaid terms. Rule is made absolute to the above extent.
(GITA GOPI,J) Pallavi Page 4 of 4 Downloaded on : Tue Oct 27 00:42:13 IST 2020